Senator Proposes Changes to Federal Forfeiture Laws

While people normally have a pretty good familiarity with criminal laws, they do not always understand how the forfeiture laws work. The federal government has forfeiture laws that allow the government to seize and keep the property of people for a variety of reasons. The government can take and hold someone’s property with very little evidence and judicial oversight for a long period of time. The burden of proof on the government to forfeit property is considerably lower than the “beyond a reasonable doubt” standard that applies in criminal cases. Therefore, the government can seize a person’s vehicle or a company’s operating account based on very little evidence and without a meaningful day in court for the claimant and then forfeit ownership of that property using the same low standard as in civil lawsuits. The state of Florida has similar forfeiture laws and procedures.

We have handled many forfeiture cases where the government or the state has seized property from clients based on assumptions and speculation alone and no specific evidence. In some of those cases, the claimant was not arrested, and criminal charges were never even considered. In other words, the government took their property with little or no evidence of criminal activity and no formal charges. In one case, more than a million dollars was taken from a bank account. We were able to recover the assets for our clients, but the process can be lengthy due to the advantages the forfeiture laws provide to the state and federal governments.

There may be some changes coming. A United States senator has proposed a law referred to as the Fifth Amendment Integrity Restoration Act that would raise the burden of proof on the government before it would be allowed to move forward with forfeiting property from a person or company. Currently, to seize (i.e. take) property, the standard is very low and something akin to probable cause, if not lower in practice. The standard for forfeiting (i.e. keeping) property is a preponderance of the evidence which is what is used in civil cases and can be quantified at a 51% confidence level or higher. The new law would change the standard to clear and convincing evidence which is closer to the well known criminal standard. In other words, the government would have to clearly and convincingly prove that the property is connected to criminal activity.

Another trick state law enforcement agencies use is to turn their forfeiture cases over to federal agencies. They do this because some state laws require forfeiture proceeds to go into a state fund (as opposed to a local fund the law enforcement agency can specifically use) or a designated fund not specifically accessible by the seizing law enforcement agency. These laws are obviously designed to remove the incentive and profit motive law enforcement agencies would have if they knew they could profit off of forfeitures. However, some law enforcement agencies have circumvented these laws by seizing property and then turning the case over to a federal agency that is not bound by the state laws with the understanding that the federal agency will kick a percentage of that money directly back to the seizing state agency once the case is finished. The new law would force state agencies to abide by these state laws and remove the profit motive from their seizures and forfeitures.

It is unclear if this proposed law will go anywhere. Knowing how much our local, state and federal governments love taking money and other property from people, we are not optimistic. However, at a minimum it might raise some awareness about the dubious federal and Florida state forfeiture laws about which many people know little to nothing.

In the meantime, if you have any property seized to be forfeited by any law enforcement agency, feel free to contact us for a free consultation about your rights.

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